(Advance Directives consist of the following documents: Power of Attorney, Health Care Proxy, Living Will, Designation of Person to Control Disposition of Remains, HIPAA, and Nomination of Guardian)
What are Advance Directives?
Advance Directives are a group of documents that you execute during your lifetime that set forth your wishes in the event of incapacity. When you execute Advance Directives you appoint a person to be your agent and to speak on your behalf in the event you become unable or unwilling to make decisions, or act on your own behalf. You typically set forth instructions for the agent to follow and vest them with authority to undertake certain transactions on your behalf. Advance Directives stop being effective the moment the agent dies.
COMPLIMENTARY DOWNLOAD: A sample pack of Advance Directives documents.
Advance Directives typically consist of
- Power of Attorney;
- Health Care Proxy;
- Living Will;
- Designation of Agent to Control Disposition of Remains; and,
- Nomination of Guardian for Adult Pursuant to Mental Hygiene Law Article 81.17
Executing these documents during your lifetime will give you a voice when you may not otherwise have one. The best part is that these documents can be obtained, prepared, and executed for little to no cost.
What is a Power of Attorney?
This document allows you to appoint somebody you trust to be your “agent” to make financial decisions on your behalf. (If you do not execute this document during your lifetime and become incapacitated, your family member may need to commence a guardianship proceeding over you so that they can make property management decisions on your behalf.)
If you do execute a Power of Attorney during your lifetime, then you can authorize your agent to pay your bills, hire or fire individuals, choose your domicile, make elections for you, sell your home or purchase a new one for you, contact Social Security, Medicare, life insurance companies, or any financial institution on your behalf.
The Power of Attorney can be “Durable” which means that it can take effect immediately upon execution by you and your agent. The Power of Attorney can also be “Springing” which means that it takes effect upon a determination (typically by letters from two doctors) that you are incapacitated or otherwise not able to act on your behalf.
You can designate one person, or multiple people, to serve as your agent. Your agents can act simultaneously or in succession. You can also authorize your agents to act separately. The basic Power of Attorney must be signed before a notary.
Although in many instances it is possible to obtain a basic Power of Attorney online and for free, the Power of Attorney document has been considered a complicated document. Click Here for a Sample of a Basic Power of Attorney. If your situation has nuances, or, if you are concerned about allegations of elder abuse and financial exploitation, I encourage you to contact an attorney to discuss preparing an appropriate and personalized Power of Attorney.
Some attorneys have added modifications into their Power of Attorney, allowing an agent to undertake additional acts on the principal’s behalf, such as estate, tax, and Medicaid planning. Click Here for Samples of Basic Modifications. If you would prefer a document that maximizes your flexibility and allows for future Medicaid and estate planning even while you are incapacitated, then it may make sense for you to reach out to an attorney.
There is another component to the Power of Attorney known as the “Statutory Gifts Rider” or “SGR.” The SGR allows your agent to make gifts on your behalf. You can specify how much gifting authority you want to provide your agent. You can also specify to whom the agent can make gifts. For example, you can specify that you want your agent(s) to make gifts to your daughter, but not your aunt. Click here for Sample Statutory Gifts Rider Form.
If you also want to execute the “Statutory Gifts Rider” then execute the Power of Attorney in front of two witnesses. One of the witnesses can be the notary.
What is a Health Care Proxy?
This document allows you to appoint somebody to make medical decisions on your behalf when you are unable to do so. This is important when you become incapacitated, and especially important if you are incapacitated in a non-hospital setting. Be sure to speak with the person you have appointed as your agent and tell them your wishes. You should make your agent aware of your views on nutrition and hydration. I always recommend using a form that a hospital or medical center is most familiar with, such as a Department of Health state form. Click Here for a Sample Health Care Proxy.
The Health Care Proxy is effective after two doctors decide that you are not able to make decisions on your own.
What is HIPAA?
This document allows your agent(s) to access your medical records and written information about you. Often times, a person will appoint another as their Health Care Proxy (“Proxy”). The Proxy can make decisions and speak on your behalf but may not be able to access your records. Executing the HIPAA Release form will allow your agent access to your medical records in order to make a well-informed decision on your behalf. I always recommend using a form that a hospital or medical center is most familiar with, such as a Department of Health state form. Click Here for a Sample HIPAA Form.
What is a Living Will?
In short, this document allows your agent to instruct medical professionals to “pull the plug” when it is determined that you do not have a reasonable expectation of living a meaningful life.
The Living Will sets forth your wishes about end of life decisions and relieves your family and loved ones of having to make the difficult decision by guestimating what you would have wanted to do under the circumstances. You are able to set forth the circumstances under which you would like nutrition and hydration to crease. In addition to executing this document during your lifetime, you should be vocal with your agent about the circumstances under which you want to be removed from machines. Click here for Sample Living Will.
You should keep your Living Will separate from your Health Care Proxy. The Health Care Proxy should be shown to all of your doctors and hospitals. The Living Will, on the other hand, should only be shown when your condition is terminal.
What is the “Appointment of Agent to Control Disposition of Remains”?
This document allows you to appoint the person who will take care of your remains. In New York, Public Health Law 4201 sets forth a statutory order of priority as to who is to control your remains. This document allows you to override that statutory list. The document also allows you to detail your specific directions to your agent, including your burial or cremation instructions, as well as the location of your grave or pre-need arrangement. I always recommend using a form that a hospital or medical center is most familiar with, such as a Department of Health state form. Click here for Sample Department of Health Form.
What is a “Designation of Guardian of Minor Child / Elderly or Disabled Individual”?
If you are concerned about what will happen to you, or your minor, disabled, or elderly child/friend/family member, you can execute a Designation of Guardian form. Under this form, you will appoint a person who can manage your affairs should you become disabled. You can also appoint a person who can take care of your minor or disabled child. Although these forms are precatory, they can be used as strong indicators of your intent.
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